The High Court cleared journalist Yusef Jabarin of expressing
support for a terrorist organization during the first
intifadah, while convicting Binyamin Kahane of sedition during
the election campaign of 1992 before Kach was outlawed. Both
decisions reversed previous decisions of the High Court
itself.
Both decisions dealt with the basic principles of freedom of
speech and its limitations. The court dealt with the two
appeals together and was not apparently concerned with the
appearance it gave of permitting Arab calls to violence while
stopping equally objectionable Jewish propaganda.
In 1991, Jabarin, a resident of Umm el-Fahm, wrote that "each
time I shout hurrah, hurrah and throw a firebomb, I feel that I
am wrapping myself in majesty and grandeur, I feel that I have
found my identity and am participating in the defense of this
identity and am worthy of living an honorable life." Jabarin
was originally convicted according to Paragraph 4a of the 1948
Prevention of Terror Order, but then asked for an expanded
hearing with seven justices.
In the case involving Kahane, the State asked for a second
appeal hearing before an expanded panel after a lower court
decision convicting Kahane was overruled.
During the 1992 election campaign, Kahane distributed leaflets
which said: "Why is it that when Arabs coming from Umm el-Fahm
slaughtered three soldiers, the government bombed Hizbullah in
Lebanon instead of bombing the viper's nest of Umm el-Fahm?"
Kahane was charged in accordance with Paragraphs 133 and 134 of
the Penal Law, dealing with seditious acts and possessing a
publication of a seditious nature.
A panel of seven justices -- President Aharon Barak, Deputy
President Shlomo Levin and Theodore Or, Eliahu Mazza, Yaakov
Kedmi, Dalia Dorner, and Jacob Turkel -- heard the two appeals.
Or wrote both majority opinions. Barak supported the
exoneration of Jabarin but opposed the conviction of Kahane.
Regarding the Jabarin case, Or concluded that the 1948
Prevention of Terror Ordinance was a draconian law limiting
freedom of speech and was meant to fight terrorist
organizations only.
"The order addresses terrorist organizations, not acts of
violence perpetrated by individuals," wrote Or. "It addresses
the danger stemming from the association of a group of people
who resort to violent deeds which endanger human life."
According to Or, Jabarin acted individually. Therefore, the law
the State cited was not applicable.
In the Kahane case, Or rejected the original Supreme Court
decision that sedition could only be defined as an act meant to
bring down the democratic regime. He said that Paragraph 136
(4) states clearly that sedition included "promoting feelings
of ill will and enmity between different sections of the
population."
"It seems to me that the value inherent in this section is the
safeguarding of the ability of various segments of the
population to live side by side in peace and security," wrote
Or. "It is a value which we can call 'social solidarity.' The
aim of this value is to safeguard the ability of all segments
of the population, which differ one from the other in so many
ways, to live together under one roof in one country."
Or wrote that an utterance could only be considered seditious
if there is a "near certain" probability that it would persuade
others to carry out acts of violence. Kahane's leaflet
fulfilled this condition, he determined, even though in the
eight years since it was handed out no one has followed its
instructions.
Or decided to reconvict Kahane but to drop the four-month jail
sentence that was originally handed down by Jerusalem
Magistrate's Court.
